On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Hudson County, Indictment Nos. 04-07-1113 and 05-05-0745.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: October 16, 2008
Before Judges Cuff and C.L. Miniman.
Defendant Donald Bryant appeals from two judgments of conviction and orders for commitment, one under Indictment No. 05-05-0745 following a jury trial adjudicating him guilty of possessing a controlled dangerous substance (CDS) with intent to distribute within a thousand feet of a school (school-zone offense) on March 16, 2005, contrary to the provisions of N.J.S.A. 2C:35-7, a third-degree crime; possession of CDS with intent to distribute, contrary to the provisions of N.J.S.A. 2C:35-5(a)(1) and (b)(3), a third-degree crime; and possession of CDS contrary to the provisions of N.J.S.A. 2C:35-10(a)(1) and (a)(2), a third-degree crime. The second appealed judgment and order was entered on defendant's negotiated guilty plea under Indictment No. 04-07-1113, a ten-count indictment, to another third-degree school-zone offense that occurred on March 4, 2004.
The judge granted the State's motion for a mandatory extended-term sentence under N.J.S.A. 2C:43-6(f) with respect to the 2005 indictment because defendant had previously been found guilty of a school-zone offense. He sentenced defendant to a ten-year term of imprisonment, five years without parole, on the 2005 school-zone offense and merged the convictions for possession of CDS with intent to distribute and possession of CDS with the school-zone conviction for sentencing purposes. With respect to the 2004 indictment, the judge sentenced defendant in accordance with the State's recommendation of a four-year term of imprisonment with a two-year parole disqualifier to run concurrent to the sentence imposed on the 2005 charges.
The relevant facts begin with defendant's failure to appear before a Superior Court judge on October 18, 2004, and pay certain fines because he was in custody on another matter from October 5 through November 14, 2004. Defendant did not notify the court that he would not be able to appear on October 18, 2004, and the judge before whom he was to appear that day issued a bench warrant*fn1 on November 4, 2004. The judge's staff apparently did not make inquiry respecting defendant's custody status before the bench warrant was issued and defendant, thereafter, did not make an attempt to contact either his public defender or the judge to explain his absence on October 18.
The warrant remained outstanding until March 16, 2005, when Officer Nicola Flora of the Jersey City Police Department was assigned to a narcotics task force consisting of agents from the United States Marshals Service and the Federal Bureau of Investigation as well as personnel from the Union County Prosecutor's Office. The task force had been assembled to execute outstanding warrants, including the warrant for defendant's arrest, which they confirmed was still open and outstanding before they attempted to arrest defendant. A group of about six officers and agents, including Flora, went to 190 Rose Avenue, Jersey City, to execute the warrant issued for defendant's arrest.
Defendant shared a bedroom with Iownna Shivers in the apartment occupied by them with their two children and Shivers' sister, Yashika West, with her three children. When the officers knocked on the door to execute the arrest warrant, a U.S. Marshal showed the warrant to Shivers and she admitted the officers to the apartment, advising them that defendant was in their bedroom. Defendant was quickly apprehended, handcuffed, and held in the outside hallway. Agent William Cannon asked Shivers for consent to search the apartment, explaining defendant was known to carry a gun and, because there were children present in the apartment, any gun should be removed. Shivers verbally agreed to the search and then signed a consent-to-search form after it had been explained to her and she reviewed it.
In conducting the search, the officers noted that the possessions in the bedroom shared by defendant and Shivers were female on one side of the bedroom and male on the other side. In a three-draw storage bin containing men's underwear and other men's clothing on the male side of the bedroom, the officers found ninety-three vials of cocaine with $100 in cash. No gun was located in the apartment. The officers informed Shivers of the items being seized and defendant was charged with three possession-of-narcotics offenses.
Before trial, defendant moved to suppress the evidence seized on March 16, 2005. After Officer Flora testified at the hearing on the motion, defendant called Shivers, who testified that the officers pulled her into the hallway when she unlocked the door. Her version of the events of March 16 differed in some essential respects from Flora's version, including the room from which the drugs were seized and the procurement of her consent to the search. She testified that, other than a bed, there was no other furniture in her and defendant's shared bedroom. As to the written consent, Shivers claimed that she only signed a typed piece of paper without any handwritten information and did not verbally consent to the search at all. Defendant also called West, who testified that she was brought out of the apartment and kept in the hallway while the apartment was searched. Like Shivers, she claimed that there was no furniture in defendant's bedroom other than the bed, although there was a three-drawer storage bin in her bedroom, which she shared with her children.
At the conclusion of the testimony, defendant argued that his witnesses were more credible than Flora and their version of the events of March 16 should be adopted by the judge; Shivers was under duress when she consented to the search, rendering it invalid; the warrant for defendant's arrest was itself invalid; and the officers lacked probable cause to enter the apartment. The State responded that both of defendant's witnesses lacked credibility; Shivers' consent to the search was knowing and voluntary; the warrant was valid; the officers were acting in good faith; and the arrest on the open warrant was proper.
The judge concluded that the warrant was valid at the time of the arrest, which consequently did not violate the law. He found that defendant's witnesses were not credible, explaining his reasons for his conclusion, and he rejected Shiver's testimony that she signed a blank consent form as highly unbelievable. He concluded that Flora, on the other hand, was credible and that his testimony was corroborated by West with respect to the officers' concern about the possible presence of a gun in the apartment. The judge also observed that he found it "highly unbelievable" that multiple federal, state, county, and municipal officers would violate the constitutional rights of defendant and his witnesses by "conducting an illegal search without a search warrant or consent to search." He then denied the motion to suppress.
Flora also testified at the jury trial on July 12, 2006, in a manner consistent with his testimony at the suppression hearing. Additionally, he testified that before defendant's arrest, he saw him looking out of the bedroom he shared with Shivers and, after defendant was arrested and the search completed, he was permitted to return to the apartment to get dressed. Defendant went into the bedroom where the drugs had been found and gathered his clothing. Flora testified that this behavior corroborated the other evidence that led the officers to charge defendant, rather than Shivers or West, ...